Legal aid child residence tests breach international rights, say MPs and peers

Government proposals will leave foreign-born children unable to participate in cases affecting their lives, warns committee

The Guardian

June 30,  2014

Denying legal aid to children who have been in the UK less than a year would prevent them from being represented, says the joint committee on human rights. Photograph: Ian Nicholson/PA

 

Depriving children of legal representation by introducing a residence test is in breach of their international rights, a parliamentary committee has warned.

The Ministry of Justice's proposals to deny legal aid to those who have been in the UK for less than a year will leave overseas-born children unable to participate in cases affecting their lives, according to the House of Commons and Lords' joint committee on human rights (JCHR).

Preventing them from being represented would breach the UK's obligations under the UN convention on the rights of the child (UNCRC), the committee said.

Hywel Francis MP, chair of the JCHR, said: "As long as children have a legal right to take part in proceedings which affect their interests, it is wrong indeed unlawful to make it more difficult for a particular group of children to exercise that right."

No information was provided to show how many children would be affected and how much money saved, the report added. It calls for all children to be exempted from the residence test. An exceptional funding safety net, set up by the MoJ for cases that deserve financial support in areas that are no longer routinely paid for, is not working, according to the report.

A recent high court ruling found that the exceptional funding arrangements are too restrictive in immigration cases and, therefore, unlawful.

"[This] raises concerns as to whether the exceptional funding regime is in practice ensuring that all individual cases are being funded in those instances where failure to do so would be a breach of the European convention on human rights or European Union law," it said.

The committee warned that four categories of children were most likely to be adversely affected: unaccompanied children who have entered the UK; undocumented children; children with special educational needs or disabilities; and those cases under certain sections of the Children Act 1989.

Francis said: "We do not feel that the government has supplied enough evidence to justify why children should not be excluded altogether from the residence test, and we feel that it has not given enough thought to some of the practical obstacles which children will face. Given the critical conclusions reached by two other parliamentary committees about this instrument, I think the government should withdraw it immediately."

The campaign to oppose cuts to legal aid has received the backing of more celebrities including the comedians Stephen Fry and Jo Brand. A short film by the Justice Alliance also highlights miscarriage of justice cases where individuals have in the past benefited from legal aid.

 

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